PENDAPAT PENGHULU TERHADAP PERWALIAN NIKAH ANAK PEREMPUAN YANG DILAHIRKAN AKIBAT PERBUATAN ZINA

Abstract

This study aims to analyze the opinions of marriage registrars (penghulu) regarding the guardianship status in the marriage of girls born as a result of zina (illicit sexual relations). This issue is crucial because marital guardianship is a legal requirement for a valid marriage in Islamic law, while the legal status of children born out of wedlock remains a point of debate in both classical Islamic jurisprudence and Indonesian positive law. In practice, marriage registrars often encounter cases in which the biological father wishes to act as the guardian, yet the absence of a legitimate nasab relationship raises legal concerns. This research employs a qualitative approach through in-depth interviews with penghulu at the Office of Religious Affairs (KUA) and normative analysis of the Compilation of Islamic Law, the Marriage Law, and classical as well as contemporary scholarly opinions. The findings indicate that most penghulu reject the guardianship of a biological father because a child born of zina has no legal nasab connection to him according to Islamic jurisprudence. Therefore, guardianship is transferred to the wali hakim (state-appointed guardian). However, a minority of registrars have begun considering the Constitutional Court Decision No. 46/PUU-VIII/2010 as a basis for recognizing certain civil relations between the child and the biological father, although they remain cautious when determining guardianship status. The study concludes that these differing perspectives highlight the need for clearer and more comprehensive operational guidelines for marriage registrars when dealing with guardianship issues involving children born out of wedlock.